Kant, Nietzsche, Beccaria

Far from being an anomaly or an embarrassment, Kant's penal theory, I want to suggest, actually dramatizes and literalizes his philosophy, bringing into the foreground the presumptive equivalence which underwrites his image of Reason as integral and self-adequating, a point too little acknowledged by philosophers who call themselves Kantians.^[4] This presumptive equivalence, in any case, is what intrigues and appalls Nietzsche when he observes that "ethics has never lost its reek of blood and torture—not even in Kant." Why is it that in our thinking about justice there is always this "sinister knitting together of the two ideas, guilt and pain," not only in the sense that guilt is imagined to have brought pain into the world but also in the sense that pain is imagined to be the proper answer, the proper sequel and remedy, to guilt, as if its dispensation could somehow obliterate guilt by a kind of corrective equivalence? Why is it that "the infliction of pain provide[s] satisfaction"?

These are the questions that Nietzsche asks, gleefully, importunely, and maniacally, in The Genealogy of Morals (1887). By way of answer, he points to the cognitive style of "primitive thought," which, according to him, had always been a barter mentality, dominated by the idea of the commensurate, the idea "that everything has its price, everything can be paid for." That barter mentality gave rise to the "oldest and naivest moral canon of justice." "The mind of early man," Nietzsche says, "was preoccupied to such an extent with price making, assessment of values, the devising and exchange of equivalents, that,

in a certain sense, this may be said to have constituted his thinking."^[5] Given this history of human cognition—given its genesis under the auspices of trade—it is not surprising that there should arise

the notion that for every damage there could somehow be found an equivalent, by which that damage might be compensated—if necessary in the pain of the doer. To the question how did that ancient, deep-rooted, still firmly established notion of an equivalency between damage and pain arise, the answer is, briefly: it arose in the contractual relation between creditor and debtor, which is as old as the notion of "legal subjects" itself and which in its turn points back to the basic practices of purchase, sale, barter, and trade.^[6]

Nietzsche's genealogy of morals offers one way to historicize the transcendent claims of justice in Kant, a historicization which suggests that the concept of justice, far from being a categorical imperative, might turn out itself to be a categorical derivation: derived, that is, from the lowly habit of commerce—the habit of purchase, sale, barter, and trade.

In my own attempt to explore the limits of justice and to give voice to what is not encompassed or resolved by that concept, this chapter is clearly indebted to The Genealogy of Morals . At the same time, the Nietzschean genealogy itself, in making justice a cognitive effect of barter—and thus primordial, universal, and instinctual—would seem to be conceding away too much analytic space, and so strikes me as being, in turn, in need of historicization, if it is to retain any degree of explanatory (or perhaps even descriptive) specificity. It is that historicized genealogy, a more nuanced and more densely elaborated supplement to the Nietzschean thesis, that I want to develop here. More specifically, I want to examine punitive justice not as a relic from times immemorial but as a cognitive mode that has continued to evolve, its scope, purpose, and rationale being shaped and reshaped by its many contexts of action. In this chapter, I will focus on one particular context, the transition from classical republicanism to modern liberalism in early-nineteenth-century America, a development which, to my mind, not only had direct bearings on the boundaries of the punitive but also opened up a new set of expressive venues (and a new set of conceptual conundrums) for that most enduring and most problematic of ideas, the idea of the "commensurate."

Beginning, then, with punitive justice as one attempt at the com-

mensurate, one among others, I will try to map out some of its operative features, its imperatives and embarrassments as it evolves, taking on new guises and new meanings. And in the end, I want to suggest that its trajectory is an uneven one: unevenly articulated in different cultural domains, marked by different jurisdictional scopes, different signifying radii, different degrees of resolution, and engendering along the way different orders of perplexities as well as different kinds of residues. These uneven developments are the subject of this book as I try to sort out the many faces of the commensurate, not only in punitive justice but also in distributive justice, not only in matters of morality but also in matters of polity, and not only within the precincts of criminal law but also under the rubric of novelistic justice.

Toward that end, the conversation here between Kant and Nietzsche might well be imagined as a two-way conversation: an intended critique of Kant by Nietzsche, to be sure, and—not intended, not ordinarily argued, but entertainable nonetheless—a historicization of Nietzsche by Kant. For The Philosophy of Law had a genealogy that was, after all, less primordial than the one imagined by Nietzsche as dating back to the "primitive thought" of "early man." Primitive or not, Kant was writing in the late eighteenth century and was, moreover, goaded into doing so, goaded most especially by the penal reforms just then sweeping across Europe. If there was a note of hysteria in his defense of the death penalty, that was no doubt because he had been witnessing for some time the phenomenal success of his adversary, Cesare Beccaria, whose treatise on penal reform, On Crimes and Punishments , first published in Tuscany in 1764, was translated into French in 1766: translated by Morellet, annotated by Diderot, prefaced by Voltaire, and enshrined instantly as one of the supreme credos of the Enlightenment. Beccaria was hailed as the "Socrates of our epoch,"^[7] winning the rapt attention not only of the Paris intelligentsia but also of a number of monarchs, including Frederick II of Prussia, Maria Teresa of Austria, Grand Duke Leopold of Tuscany, and Catherine the Great of Russia, who called upon the author to reside at her court and supervise the necessary reforms in person.^[8] In less exalted circles, Blackstone also featured Beccaria in his Commentaries on the Laws of England , while Bentham was moved to call him "my master, first evangelist of Reason."^[9] Meanwhile, in the American colonies, John Adams, as a young lawyer in 1770, saw fit to invoke "the words of the marquis Beccaria" to defend the British soldiers

implicated in the Boston Massacre—to such effect that none of them was found guilty of murder.^[10] Jefferson, too, copied into his Commonplace Book long passages from Beccaria, to guide future legal reform in Virginia.^[11]

In the name of Reason, Enlightenment Reason, Beccaria rejected the death penalty in no uncertain terms. If "I can show that death is neither useful nor necessary I shall have gained the cause of humanity," he announced conspicuously in the chapter devoted to that subject. The crucial word here was "useful," a supreme criterion for Beccaria, for it was "the idea of common utility which is the foundation of human justice." And upon this foundation, Beccaria argued that a "just" punishment should be no more than what would "suffice to deter men from committing crimes."^[12] The purpose of punishment, in other words, was not to exact atonement for the crime already committed but to prevent crimes from being committed afresh. And it was because of its inadequacy as a preventive measure that Beccaria would come to reject the death penalty in favor of something more efficient, namely, life imprisonment:

It is not the terrible yet momentary spectacle of the death of a wretch, but the long and painful example of a man deprived of liberty, who, having become a beast of burden, recompenses with his labors the society he has offended, which is the strongest curb against crimes. That efficacious idea—efficacious, because very often repeated to ourselves—"I myself shall be reduced to so long and miserable a condition if I commit a similar misdeed" is far more potent than the idea of death, which men envision always at an obscure distance.^[13]

In short, for Beccaria what was wrong with the death penalty was that it was not efficient enough. Even though it managed to kill off the actual criminal, it had no effect on potential offenders. Life imprisonment, by contrast, worked much better, since its penalty would be felt by all "those who are the witnesses of punishment, inflicted for their sake rather than the criminal's."^[14] Sentenced to jail, the criminal would be made into an object lesson, a "long and painful example" to "inspire terror in the spectator." And, to maximize that object lesson, Beccaria insisted that the prison should be made into a place of utter misery and that the jail sentence should be carried out "among fetters or chains, under the rod, under the yoke, in a cage of iron."^[15] For Kant, however, even this severity would not suffice, for the very talk

of an "efficacious" punishment was anathema to his nonutilitarian philosophy. And so he set out, in The Philosophy of Law , to attack the argument of "the Marquis Beccaria" and to expose his "sophistry" and "compassionate sentimentality."^[16]

Of course, in the next century it was Beccaria's philosophy rather than Kant's that would come to dominate the field of penal justice.^[17] The early nineteenth century was the age of the penitentiary, with its environmental view of crime, its rehabilitative zeal toward the criminal, and its grand ambition to achieve the twin goals of reform and deterrence through the agency of the prison sentence.^[18] The United States in particular spearheaded the movement, and new-style prisons soon sprang up: in Auburn, New York, between 1819 and 1823, in Ossining (familiarly known as Sing-Sing) in 1825, in Pittsburgh in 1826, and in Philadelphia in 1829. By the 1830s, the American penitentiary had become world famous, attracting visitors such as Alexis de Tocqueville, Gustave Auguste de Beaumont, Harriet Martineau, and Charles Dickens.

In one obvious sense, Kant and Beccaria stood at the opposite ends of an intellectual spectrum, not only in their rival championship of retribution versus deterrence but also in their rival claims to the august title of Reason. And yet in a different sense, Kant and Beccaria might also be seen not as antitheses but as kindred to each other. The axis of kinship, I would argue, was nothing less than the principle of commensurability itself, a principle embraced by both: embraced by Kant as the reflexive parity achieved by the "Equalization of Punishment with Crime," and embraced by Beccaria as the consequential parity achieved by equating crime with the sum of "harm done to society."^[19] And so, no less than Kant, Beccaria also believed in justice as a principle of equivalence. The magnitude of a crime, in his case, was to be equated with the magnitude of its adverse social effect, and the magnitude of the punishment was to be calibrated in equal measure.

Indeed, it was the lack of such a system of equivalences that for Beccaria signaled the malfunction of a penal system. In that eventuality, "an equal punishment [is] ordained for two crimes that do not equally injure society." Such a lapse was not so much inhumane as inefficient, Beccaria argued, for the lack of parity between crime and punishment meant that "men will not be any more deterred from committing the greater crime." The challenge facing the penal

reformer, then, was to devise a principle of equivalence that would have the maximum deterring effect, namely, "an exact and universal scale" that would match every crime to its exact punishment. This, to Beccaria, was not at all idle talk but was a feasible undertaking, for crime and punishment were both eminently calculable for him, calculable, that is, by using "societal harm" as the common yardstick, the common measure for both the offense and the sanction. And so Beccaria's penal universe turned out to be very much a commensurate universe, horizontally organized by the principle of equivalence and vertically organized by the image of the scale. This was an article of faith for him, or perhaps I should say an article of Reason, for he insisted over and over again that what was needed in penal reform was "geometric precision" and "mathematical exactitude." "If geometry were applicable to the infinite and obscure combinations of human actions," he said, "there ought to be a corresponding scale of punishments, descending from the greatest to the least" and ensuring, in all instances, "a proper proportion between crimes and punishments."^[20]

Crime and punishment, properly calibrated and properly correlated, turn out to embody a principle of "Like with Like" for Beccaria, much as they do for Kant. The surprising convergence here between these two thinkers—their shared commitment to a principle of equivalence, over and against their substantive disagreements—says something about the expressive range of Enlightenment Reason as well as about its cognitive tenacity. What was clear, in any case, was that the principle of commensurability was neither dismantled nor jettisoned in the penal reform inspired by Beccaria but was reoriented, rehabilitated, assigned a new instrumental function, and assigned a new operative site. Given the versatility as well as the ubiquity of this cognitive principle, it is tempting to study the late eighteenth and the early nineteenth centuries in just that light: as a field complexly and unevenly marked by the dictates of equivalence and complexly and unevenly institutionalizing those dictates. The history of criminal law, from this perspective, would seem to be only one strand of development within an interlocking cultural field, and any attempt to address it must address a much broader set of questions: questions about the various institutional forms of the commensurate, about the alignment of those institutions within a cultural order, about the evolving boundaries between adjacent domains, and about the possibility of re-

sidual formations, sometimes in tandem with and sometimes at odds with formations that are emerging.

In what follows, I want to look at the evolution of criminal law within this cultural field, against two related (though admittedly conjectural) phenomena. On the one hand, the shift from retribution to deterrence would seem to have coincided with a broader shift in jurisdictional boundaries, brought about by the much-discussed separation of law and morals in the late eighteenth century. On the other hand, this shift, however pronounced, was nonetheless far from uniform, which would suggest that there might be a transitional residue here: a domain imperfectly "covered," imperfectly rationalized, and therefore imperfectly registering the ascendancy of deterrence over retribution. In this context, it is helpful to remember that for all its public glamor, the penitentiary in America was actually only a minor ornament in a legal system whose center of gravity was rapidly moving in a different direction. Nineteenth-century American law was overwhelmingly economic in focus, the bulk of it occasioned by the needs of an expanding and industrializing nation, and preoccupied with the regulation and enforcement of contract, the sale and transfer of land, the granting of corporate charters, and the authorization of turnpikes, canals, bridges, and railroads. Distribution—not punishment—was the law's business in the nineteenth century, and in the complex reshuffling of institutional filiations, it was toward the economy that the law would now gravitate, honoring the dictates of a thoroughgoing instrumental rationality.^[21] As Lawrence Friedman says, nineteenth-century law emphasized "the protection of property rather than morality," and for that reason "criminal justice and civil justice alike ceased to be concerned with the individual."^[22]

The triumph of deterrence over retribution must be seen in this context. And to the extent that this "triumph" was itself a complex effect, itself sedimented out of some wide-ranging jurisdictional evolutions, we might speculate as well about its nonintegral character, which is to say, its incomplete summation by a discretely periodizing model. Beccaria's ascendancy, in other words, neither completely displaced Kant nor completely dissolved his claims. And so the language of retribution would end up persisting well into the nineteenth century, becoming more and more marginal perhaps, but retaining, in that marginality, not only a residual resonance but also a residual obliqueness to the normative order.

That resonance and that obliqueness are most richly played out in the novel, I want to suggest, for it is here, within this most sedimented of genres, that we would witness the continuing vitality of an older form of punishment: punishment as retribution, punishment as the Kantian equation of "Like with Like," an equation reflexively executed within a single individual. If this anachronism grants the novel a certain distance from its adjacent institutions, it also induces in it something like a cognitive overload, a justificatory crisis, one that ultimately unsettles the very intelligibility of "punishment" as a concept. And so the justice that the novel dispenses ends up being injudicious and unsatisfactory in almost every way, bringing with it not full coverage, not full resolution, but a generic sense of deficit or excess, a sense that its verdict can never be fully "equal" to its object. If there is in Kant (and in most of us) a "sinister knitting together of the two ideas, guilt and pain," as Nietzsche charges, what the novel achieves, fitfully but also quite faithfully, is the obverse of that phenomenon: a sundering of that fated couple, guilt and pain. That sundering removes pain from its causative as well as corrective partner, leaving it dangerously afloat, a phenomenon to be reckoned with entirely on its own. Unreflexive of guilt, unpunitive of guilt, and, most troubling of all, unexhausted by guilt, pain will henceforth occupy a special place in the novel as an ever-stubborn challenge to its rational order. What occasions that challenge and what that challenge means for the concept of justice are the subjects for the rest of the chapter and indeed the entire book.